Praise for Failed Evidence

"...A masterful expose of both the flaws in our criminal justice system and the reasons many police and prosecutors are unwilling to correct them."
Professor Christopher Slobogin, Vanderbilt University Law School

Those of you who follow this blog have read (e.g., here and here) about conviction integrity units (CIUs): small groups of attorneys in a district attorney’s office who have the mission of investigating claims of wrongful convictions in past cases tried by that same office. These units, just like homicide units, major crimes units, or others in the DA’s office, are dedicated to one type of work: investigating claims of wrongful conviction. grity work.

The first conviction integrity unit in the country was established by Dallas DA Craig Watkins, in order to have a regular way to investigate the claims of wrongful convictions that his office already faced, and others that might arise in the future.

I support CIUs. They assure that the DA’s office has a built-in way to address any substantive claim of wrongful conviction. They can work in partnership with local innocence projects, which can serve as screeners for claims of innocence, in order to point CIUs to cases with real, tenable claims. (This was the arrangement between the Dallas DA’s CIU and the Texas Innocence Project when I researched and wrote my book Failed Evidence.) CIUs are far from a perfect solution; they are, after all, part of the DA’s office that may have made the alleged mistakes being investigated, and so they lack independence. But without a better alternative — for example, a state-created agency like North Carolina’s Innocence Inquiry Commission — CIUs can do the job, and can be created immediately, on the orders of the DA.

CIUs have begun to spread to DA’s offices across the country. And with that visibility comes some serious thinking about how best to assure conviction integrity. A conference will take place this Friday, April 4, and Saturday, April 5, called “A Systems Approach to Conviction Integrity,”sponsored by the Quattrone Center at the University of Pennsylvania Law School in Philadelphia. The event is free, and will be live streamed on the internet for those (like me) who cannot get to Philadelphia to attend.

Take a look at the description of the conference and the agenda. It’s designed to help people involved in the criminal justice system learn to use quality control systems from experts in laboratory science, aviation and aeronautics, medicine, public health, transportation and other fields who have created mechanisms and institutional cultures designed to reduce and ferret out errors. Here’s a sample of the conference statement, just to give everyone a sense:

The problem of quality control pervades many of the systems in our society. Panelists, each expert in quality control and systems error reduction in a complex, high-risk field, will explore efforts to address quality control in a range of other important areas, such as healthcare, aviation, laboratories, etc., and how maintaining quality in the criminal justice system may be similar to and different from quality control in these other areas.

If you are interested in the problem of reducing wrongful convictions going forward — that is, not just correcting the errors of the past, but avoiding them in the future — I urge you to attend or watch via the web stream. The conference will be a milestone along the road to a better, more accurate criminal justice system, with a ton of information we can all use.

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.” Some of these suspects who allegedly confessed said that they had told Scarcella nothing. Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man. According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here. As readers of the Failed Evidence blog know, CIUs are dedicated units within prosecutors’ offices, just like homicide or fraud units, that take on the task of re-opening old convictions now in doubt. The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places. In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created. But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all. We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

I’ve written before about Conviction Integrity Units (CIUs) in prosecutors’ offices (take a look here and here). CIUs are groups of lawyers within prosecutors’ offices — just like a major crimes unit or a narcotics unit, though probably much smaller than either of these — with the job of investigating questionable past convictions from that same office. CIUs do this when presented with evidence that raises real doubts about the guilt of a convicted defendant in one of the office’s past cases.

The first CIU was established by Dallas DA Craig Watkins, who had then just been elected against a backdrop of more than 20 exonerations of people wrongfully convicted under the past leadership of his agency. (The latest story about Watkins and the exoneration of wrongfully convicted people in Dallas — examining a fascinating twist on exonerations — is here.) Just a couple of years later, Patricia Lykos, then the newly elected DA in Houston, established a CIU in her office. From Texas, the idea has begun to spread.

Both the Dallas and Houston CIUs have one thing in common: they were launched by new DAs to investigate cases that originated under former administrations. No doubt this is easier than investigating mistakes that have happened under one’s own watch.

That’s what makes this story out of the Brooklyn DA’s office so interesting. Charles Hynes, the elected DA of Brooklyn, established a CIU that will be looking at cases in which prosecutors obtained convictions during his own six terms in office. For example, at the end of March, David Ranta, 58, was released after spending 23 years in prison for the killing of a rabbi in Williamsburg, Brooklyn. The original conviction came under Hynes’ leadership; when Ranta was released, Hynes gave credit for the release to his CIU.

CIUs accomplish something very fundamental: they make the task of uncovering mistakes in the justice system into a routine operation. On the other hand, as readers of this blog have correctly pointed out, CIUs are a lot like internal affairs divisions in police departments: the DAs are investigating themselves. This is easier to credit when the head of the office is not the same person who was at the helm when the mistakes were made. It is also why CIUs are still rare when the head of the office has been serving a long time — long enough to be the one responsible for the mistakes under investigation.

I’ve gotten some great comments on my posts (here’s the last one) on Conviction Integrity Units (CIUs) for prosecutor’s offices. One group of these comments contains an important criticism of my support for CIUs.

The thrust of the criticism is that CIUs, as units within the same prosecutor’s offices that may have produced wrongful convictions in the first place, are not independent. They are, instead, part of the very agencyiesthat they investigate. Because of that, they may not do thorough, complete, and unsparing investigations. To the extent that the lawyers in CIUs investigate their own colleagues, they will always be tempted to make their fellow prosecutors or the agencies look good. Because the lawyers in the CIU are ultimately beholden to the elected prosecutor they serve, they may not feel free to follow the facts where ever they lead, without fear or favor. And at the very least, because they are not independent, the public may not view CIUs or their investigations as legitimate, even if they do every thing right.

This is an absolutely legitimate criticism. One can say the same thing about internal affairs units within police departments. (In fact, one critic of my proposal to require CIUs made exactly this analogy.)

I certainly agree that, ideally, the best arrangement would be independent CIUs: a unit outside the prosecutor’s office to investigate claims of innocence. This could be a group of independent lawyers, like a citizen’s review board to review police conduct, or a free-standing state agency, such as the North Carolina Innocence Inquiry Commission. Organizations like these, if fully independent and adequately empowered to accomplish their missions, would be the best choice. They could not be interfered with, staff would not be intimidated by owing their jobs to the prosecutor, and they would have more legitimacy in the eyes of the public.

The problem is that, in the U.S., there seems to be little political appetite for this kind of agency. North Carolina’s Commission is a counter example, but it stands virtually alone. In the U.S., where the vast majority of prosecutors are elected county officials who often wield considerable local political power, the chances that governments will create independent bodies to investigate prosecutors’ mistakes seem virtually nil. (The creation of independent police review boards in the U.S. has been very difficult, and police and their unions have fought them mightily from the start.) Should a state legislature consider the creation of independent CIUs, overwhelming political opposition by powerful prosecutorial lobbying organizations is a certainty, and would almost guarantee defeat.

The appealing thing about internal CIUs is therefore a bit counter-intuitive, but real: they can be created by prosecutors themselves, for their own agencies. No outside authority is necessary to have this happen. A prosecutor who sees the virtue of CIUs — in terms of ferreting out old injustices, learning from past mistakes, and building trust with the citizens (that is, voters) they serve — can simply go ahead and create one. This is exactly what Craig Watkins did in Dallas County after he was elected in 2006, and it is why some other DAs are doing it now.

Of course, not all prosecutors will take this step, and maybe those whose offices need it most are least likely to do it. (Surely, it is no accident that the prosecutors in Dallas, Houston, and Manhattan that have created CIUs have all been new to the office; their CIUs investigate their predecessor’s cases. Brooklyn, N.Y. prosecutor Charles Hynes, mentioned in the New York Times article last week concerning a wrongful conviction, is the exception; he has served since 1989, and therefore his CIU investigates his own cases.) That’s certainly a fair point. But right now, of course, there are no independent CIUs except North Carolina’s. By advocating the creation of internal CIUs as a best practice to be expected of any well-run prosecutor’s office, we can move the prosecutorial profession in the right direction even if it doesn’t happen everywhere, and even if internal CIUs are only a good model, but not the best one.

But this issue is important enough that I’d be very happy with a good model in many places — certainly happier than with the best model up and running, but only in one place.

When I explain conviction integrity units (CIUs) — units lawyers in a prosecutor’s office whose job is to examine past convictions when real claims of actual innocence surface — most people understand that CIUs make sense. They create an institutional process to investigate and resolve questions about past cases in which the system may have convicted the wrong person. That in itself is a good thing.

In Failed Evidence, I make a further argument: CIUs are a necessary ingredient if we are to change law enforcement practices to reflect the best science we have. Here’s why.

For more than two decades, the starting point of reform in the criminal justice system has been the wrongful convictions uncovered through DNA testing. These cases, which now number three hundred, exposed many of the weaknesses in our traditional police practices. Finding and righting these miscarriages of justice has been one of the major issues for criminal justice reformers. And rightly so: a justice system that tolerates these kinds of catastrophic mistakes lacks integrity and will eventually lose public confidence.

These efforts must, of course, continue. But we also need to energize efforts to change the practices that lead to these mistakes. To make those changes happen, we need the involvement not just of advocates for the wrongfully convicted, but also of police and prosecutors themselves. Sometimes, those folks are reluctant to become involved if they think reform efforts will be about blaming them and pointing out their mistakes. Thus one of the keys to success is to focus the effort on reforms going forward — how do we prevent mistakes in the future? — while at the same time, creating a regular way for the mistakes of the past to be confronted and corrected.

That last part, of course, is where CIUs come in. If every prosecutor’s office had a CIU, cases of possible wrongful convictions would be referred to that unit in the regular course of business. It would become part of the institutional infrastructure — one of many standard operating procedures. Citizens would have confidence that these kinds of injustices would be dealt with. And that would, I hope, free up our criminal justice leaders to pursue the question of how we do better as we go forward.

This isn’t a perfect solution, and in an upcoming post I’ll address a couple of very perceptive comments I’ve already received criticizing this approach. But I do think it would be a substantial advance over what we have now.